By Mike Dorf
As I noted in yesterday's post, one way the Supreme Court could avoid deciding whether Section 3 of DOMA is valid is by finding that there is no jurisdiction because the Obama Administration has declined to defend the law. Here is the question that the Court added in its cert grant: "Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case." Suppose the Court finds that the combination of executive non-defense and lack of standing for the BLAG means that the case is not justiciable. What then?
I'll address that question momentarily, but first, let me say that I do not think the Court should dismiss on justiciability grounds. Perhaps the closest parallel in the SCOTUS case law is INS v. Chadha. The Executive Branch took the position that the legislative veto provision of the amended Immigration and Nationality Act was unconstitutional but was nonetheless prepared to enforce it--roughly the same enforce-but-don't-defend posture that the Obama Administration has taken with respect to DOMA Section 3. Nonetheless, the Court treated the case as justiciable because Congress took a position adverse to Mr. Chadha.
To be sure, the Court's discussion of the Article III case-or-controversy requirement is confined to a terse footnote. And arguably, DOMA is different because here it's a subset of Congress, rather than Congress itself, that is seeking to defend the statute. (In Chadha, a few members of Congress filed a brief agreeing with the executive that the law should be struck down but a clear majority of Congress supported the official legislative position.) Accordingly, it would be possible for the Court in Windsor (the DOMA case) to say that only the full Congress can defend a statute if the Executive declines to do so. And presumably, at least some Justices think this issue remains open after Chadha, or they wouldn't have added it as a cert question. So it's possible that the Court will dismiss on justiciability grounds.
What would happen then? Well, for one thing, presumably the Second Circuit decision is vacated also. Windsor herself still wins the case, because, with the executive not defending DOMA, and the BLAG lacking standing, she gets a default judgment. But that's not a precedent and so the executive would at that point have three options:
1) Continue to enforce DOMA without defending it. But the whole point of an enforce-but-don't-defend approach is for the executive branch to be able to assert its constitutional views while still respecting the authority of the Congress that enacted the legislation (the "enforce" part) and the authority of the courts to provide an authoritative ruling on constitutionality. With the latter no longer possible, such a policy serves no practical purpose, simply imposing on everyone subject to the law the obligation to go to court to get a default judgment. Hence, a non-justiciability ruling would likely mean the end of enforce-but-don't-defend. Accordingly, the executive could then shift to:
2) Don't enforce/Don't defend. This is the preferred approach of strong "departmentalists" who think that the executive branch's ability to choose not to enforce laws it believes are unconstitutional is an important protection for liberty. I am sympathetic to this view in those rare circumstances in which the executive has very strong reason to think that a law is unconstitutional and also very strong reason to think that the courts will not so hold. But it's darned hard to find non-hypothetical concrete examples. Jefferson's non-enforcement of the Sedition Act (which I discussed here) is really the only one that history serves up, and so it is tempting to think that the dangers of any Presidential power of non-enforcement outweigh its benefits. What are those dangers? Chiefly that a President, under the rubric of his views of the Constitution and prosecutorial discretion, will fail to carry out his obligation to faithfully execute the law. You may think such executive discretion is a fine thing when you approve of the underlying policy (for me, e.g., Obama declining to deport a class of deportable aliens) but if so, you're likely also to abhor the power when exercised by a President whose views you find less sympatico (e.g., Bush asserting power not to be bound by the torture prohibitions of the Detainee Treatment Act). Hence, in a world where enforce-but-don't-defend fails to present issues cleanly to the courts, we may end up thinking that the executive should simply:
3) Enforce and defend, even if the executive thinks the law is unconstitutional. This is hardly a crazy position. The Justice Department is the government's lawyer and lawyers are completely accustomed to going into court to make arguments that benefit their client but that deviate from their ideal view of the law. To be sure, the government is somewhat different from other litigants. There is thus a good case to be made that, as a co-equal branch, the federal executive's views about a law's constitutionality should be presented to the courts in their pure form. But the most straightforward way for that to happen is for the courts to allow substitute counsel when the executive adopts an enforce-but-don't-defend posture--and by hypothesis, that option is off the table.
Hence, if the SCOTUS takes the justiciability route out of deciding the merits in Windsor, it will leave the Obama Administration with an essentially all-or-nothing choice: Don't enforce/Don't defend versus Enforce/Defend. On general principles, I think the right choice for the Administration at that point would be Enforce/Defend--because, although I think DOMA is unconstitutional, I don't think it rises to the level of obvious unconstitutionality of the Sedition Act, nor do I think the prospects for having it struck down in the courts are so bleak. (By contrast, the Federalist-packed judiciary was clearly willing to uphold the Sedition Act.) But I could well understand how other lawyers might draw other conclusions.
Indeed, what's perhaps most interesting is that a decision by the Supreme Court that there's no jurisdiction would empower the executive relative to the courts by eliminating the middle ground of enforce-but-don't-defend. In other words, as I noted in my Verdict column last week, the Court's own institutional interest is served by finding justiciability in the enforce-but-don't-defend circumstance. The Court doesn't always act in its own institutional interest, but that's the way to bet. Accordingly, I think that a majority will reach the merits.